With the recent introduction of the offence of workplace manslaughter in Victoria, it is important for organisations and their officers to understand the risks should they fail to maintain their health and safety obligations and how the consequences differ across the nation.
What has changed?
Amendments to the Occupational Health and Safety Act 2004 (OHS Act) passed Victorian Parliament on 29 October 2019, with the introduction of the offence of workplace manslaughter as part of the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Bill).
The Bill received Royal Assent on 3 December 2019 and is due to commence on a day to be proclaimed or 1 July 2020, whichever occurs first.1
Two workplace manslaughter offences will be introduced into the OHS Act. Under the amended OHS Act:
- a person will commit workplace manslaughter when they engage in conduct that is negligent, in breach of an applicable duty owed to another person, and where the conduct causes the death of that other person;
- a person who is an officer of an applicable entity will commit workplace manslaughter when they engage in conduct that is negligent, in breach of an applicable duty owed by the entity to another person, and where the conduct causes the death of that other person. 2
What is negligent conduct?
Negligent conduct is defined as:
- a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in; and
- causes a high risk of death, serious injury or serious illness (including a mental illness). 3
Are there any penalties?
A breach of the offences will carry a maximum penalty of 25 years imprisonment for a company officer or a fine of 100,000 penalty units (currently $16,522,000) for a body corporate. 4
Late last year, the Victorian Attorney-General and workplace safety minister Jill Hennessy explained to reporters that “the standard is very high because the penalty is very high”, suggesting that the offence will not be easy to prove.
WorkSafe Victoria will be responsible for investigating the new offence using their powers under the OHS Act.
Other States and Territories
Australian Capital Territory
The first statute enacting industrial manslaughter law in Australia was passed by the ACT, with the Crimes (Industrial Manslaughter) Amendment Act 2003 amending the Crimes Act 1900 in 2004.
The ACT offences apply where an employer 5 or senior officer of an employer 6 causes the death of a worker through recklessness or negligence.
The maximum fines of 2,000 penalty points (currently $1,620,000 for a body corporate or $320,000 for an individual) apply, or 20 years imprisonment or both.
In Queensland, the Workplace Health and Safety Act 2011 was amended in 2017. The Queensland law makes it an offence for a person conducting a business or undertaking (PCBU), or a senior officer, to negligently cause the death of a worker.
Where a PCBU, or senior officer, commits industrial manslaughter, a maximum penalty of 20 years imprisonment for an individual (no fine is available) 7, or 100,000 penalty units (currently $13,345,000) for a body corporate 8, applies.
This year, the Queensland Government introduced laws extending the offence of industrial manslaughter and fines of more than $13.3 million to the resources sector, by adding industrial manslaughter offences to the Coal Mining Safety and Health Act 1999, Explosives Act 1999, Mining and Quarrying Safety and Health Act 1999 and Petroleum and Gas (Production and Safety) Act 2004.
The NT Parliament passed the Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 on 27 November 2019, which will commence on a date to be fixed by Gazette.
When it commences, the NT industrial manslaughter offence will carry a maximum penalty of life imprisonment for an individual, or 65,000 penalty units (currently $10,205,000) for a body corporate. 9
Industrial manslaughter legislation is also proceeding through the parliament of WA, with the introduction of the Work Health and Safety Bill 2019 on 27 November 2019.
All other states
There are no plans to introduce industrial manslaughter legislation in NSW, SA or Tasmania.
The Federal Coalition government has also previously taken the position that specific industrial manslaughter laws are not required.
Considerations for Employers
Some relevant considerations:
- Consider whether the organisation and its officers understand the health and safety risks in their operations and implement effective controls for any risks and hazards
- Consider what information and support may be necessary to assist officers to comply with their personal duties
- Stay up to date on any legislative changes and how it could impact their organisation
If you would like advice or assistance with any of the above issues, please contact a member of our Workplace Relations team.
1 Victoria Government Gazette, 3 December 2019, No. S 497.
2 Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019, s 39G.
3 Ibid, s 39E.
4 Ibid, s 39G.
5 Crimes Act, s 49C.
6 Ibid, s 49D.
7 WHS Act, s 34D.
8 Ibid, s 34C.
9 NT Bill, s 34B(1).
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